Making the Deal Stick: Enforcing the Original Constitutional Structure of Lawmaking in the Modern Regulatory State

Abstract

Today, most national public policy is made by administrative agency regulations and not by direct statutory enactment. The lawmaking role of agencies has complicated American constitutional law generally, presenting issues not anticipated by the framers of the Constitution. Two decisions of the Supreme Court in the 1980s significantly changed prior constitutional assumptions about the role of Congress and the judiciary in monitoring the lawmaking functions of agencies. In Immigration & Naturalization Service v. Chadha [462 U.S. 919 (1983)] and subsequent summary decisions, the Court effectively invalidated all statutory provisions that allow either house of Congress, or both acting in concert, to agency action without presentment to the president. The Court conceded that the legislative veto might serve useful purposes but argued that the original intent of the framers of the Constitution left it no other choice than to strike it down. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. [467 U.S. 837 (1984)], the Court held that agency interpretations of statutes they are charged with enforcing are binding on courts, unless inconsistent with the plain meaning of the statutory text. The Court invoked the original intent of the framers to argue that judges should defer to agency interpretations (unless clearly inconsistent with the statutory text enacted by Congress), because the popular accountability of the executive branch makes it a more appropriate forum for making policy choices than the courtroom.